Bombay High Court
Bajirao Maruti Dale vs The State Of Maharashtra And Anr. on 4 February, 2004
Equivalent citations: 2004CRILJ1638
Author: V.G. Palshikar
Bench: V.G. Palshikar, P.V. Kakade
JUDGMENT V.G. Palshikar, J.
1. Being aggrieved by the judgment and order of conviction and sentence passed on 29-4-1999 by IV Additional Sessions Judge, Sangli in Sess. Case No. 10/97 the appellant named above has preferred this appeal on the grounds mentioned in the memo of appeal and as verbally canvassed by the learned advocate appearing on behalf of the appellant before us.
2. With the assistance of the learned counsel for the defence and the prosecution we have scrutinized the record and reappreciated the evidence.
3. The prosecution story as emerges from reappreciation of evidence on record stated briefly is that on 3-7-1996 the appellant and the deceased along with their friends Shisal and Namdeo Ishwar Hargunde were drinking liquor in one cycle shop. Some quarrel took place between the appellant and the deceased. The appellant took out a knife and stabbed the deceased. The deceased chased the appellant and Namdeo however due to injuries fell down near the scuttier of one Manik Shisal. Thereafter he was shifted to civil hospital, Sangli through a police van by his nephew Dhanaji and police officer Arjun Sakunde. At the time of shifting Dhanaji, nephew, of deceased inquired with him about the incident and the deceased narrated the whole incident. Dying declaration given by the deceased came to be recorded by Sub-Inspector Arjun Sakunde in the Civil Hospital, Sangli. Thereafter the accused was arrested, investigation was conducted and the learned trial Judge came to the conclusion of guilt and convicted the appellant as aforesaid.
4. It is pertinent to note that there was no eye-witnesses in this case. There is no ocular account of what exactly transpired. The evidence on record as led by the prosecution proves beyond doubt that the accused did give one severe blow of knife to the victim probably as a result of quarrel. It is proved by the prosecution that the accused as also deceased and some others were sitting together consuming liquor. Some exchange occurred during such consumption resulting accused getting enraged and stabbing the victim. The prosecution has proved beyond doubt that the death of the victim was homicidal.
5. The learned counsel appearing for the appellant after making his submissions regarding unsustainability of conviction under Section 302 of IPC fairly pointed out that at the most it can be a case of conviction under Section 304(II) as there is no proof of intention on record, there is no proof of record to show that the accused who was drunk at the time of assault intended to cause death of victim. It is the case of sudden attack resulting in death the likelihood of which must be presumed with the accused. The learned counsel therefore contended that even accepting the entire prosecution evidence as correct conviction under Section 302 is not possible.
6. The contention raised by learned counsel is well founded. It is true that persons were drinking liquor in the cycle shop. It is true that there was exchange of words, accused got up and stabbed the victim. There is no evidence to show as to why it was done nor those who witnessed the assault have been examined to prove it if at all anybody being factually witnessing it. Except for the dying declaration where the victim names the accused as the assailant there is no other ocular testimony to connect the accused with the crime. The medical evidence also supports the case of single stab. In the absence of any evidence of intention to commit murder and the fact proved on record being sudden quarrel and assault we feel that the correct position in law would be a conviction under Section 304(II). In the result appeal succeeds partly and is allowed partly. The conviction under Section 302 of IPC is set aside and instead the accused is convicted under Section 304(II) to suffer imprisonment for seven years. Factually the accused has spent more than seven years in jail. Hence he is liable to be released forthwith if not otherwise required. Appeal thus stands disposed of accordingly.